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State v Gounder [2011] FJMC 28; Criminal Case 232 of 2011 (14 March 2011)

IN THE MAGISTRATE'S COURT AT NASINU

Criminal Case No: 232 of 2011

STATE

V

SHANKARAN GOUNDER

W/Cpl Mere for the Prosecution
The accused present and appeared in person

SENTENCE

1. You, Shankaran Gounder, are here, to be sentenced on admission of guilt on your own accord for the following offence namely:

Assault Occasioning Actual Bodily Harm: Contrary to Section 275 of the Crimes Decree No. 44 of 2009.

I am satisfied with your plea is unequivocal and that you understand the repercussion of your plea.

2. According to the facts, (which you have admitted), on 21-02-2011, Victim (PW 1) is your wife was at home after work at about 1830 hrs. You were drinking at home at that time. You asked your wife to drink but she refused to join. She had a bath and she went to bed. Then at about 2000 hrs you approached her, sat on her stomach and then you started punching her on face. Thereby she was sustained left and right eye's injuries. PW1 managed to escape and ran to her neighbours place. This matter was reported to the Police and Victim was hospitalised for treatments.

3. Maximum penalty could be imposed for this offence is five years imprisonment.

4. It was held in State v Tugalala [[2008] FJHC 78; HAC025S.2008S (29 April 2008), the tariff for this offence appears to range from an absolute or conditional discharge to 12 months imprisonment. As cited in earlier case, in Elizabeth Joseph v. The State [2004] HAA 030/04S and State v. Teviafi [2004] HAA073/A073/04S, that it is the extent of the injury which determines sentence. The use of a pen knife for instance, justifies a higher starting point. Where there has been a deliberate assault, causing hospitaliz and with no reconciliationation, a discharge is not appropriate. In domestic violence cases, sentences of 18 months imprisonment have been upheld (in Amasai Korovata v. The State [2006] HAA 115/06S.

Aggravating Factors of the offence

5. Following facts were revealed by the summary of facts placed before the court and will be considered as aggravating factors.

- deliberate assault

-cause injuries to the victim

-domestic violence

6. Medical Examination form reveals that the complainant of this case has sustained three injuries.

7- In my view, you have committed this crime with anger and under the influence of liquor. Anger does not produce anything apart from the violence and peril of your life and others' lives. In general it may cause your and other peoples' life miserable. But fortunately this case has not led up to that much.

8. You pleaded guilty for the charge at the first instance. Therefore, you are entitled for reduction of your sentence. You have reconciled with your wife that is the complainant of this case and she confirmed before this court but with conditions. Domestic violence is a serious offence and pervades all over the world. Thousands of innocent victims have been battered daily and lamentably most of incidences are not reported to legal authorities. Offence of Assault Occasioning Actual Bodily Harm is a reconcilable offence. But this court notes the offence that you have committed comes within the purview of section 3 (1) and (2) of Domestic Violence Decree 33 of 2009. In that event it cannot be reconciled under section 154(6) of Criminal Procedure Decree No 43 of 2009. Hence, your reconciliation of the victim, with your wife has no legal effect and it should be turned down.

Mitigating Factors

9. In mitigation, you said that you are 50 years old, married with 4 children. You are self employed. You earn $100 per week. You reconciled with the complainant. . You are asking forgiveness and leniency of this court. You are a first offender.

10. Victim is your wife and you treated her in bad manner. Though she is your wife you have no legal right to beat her. The innocent wife came before court and consented to reconciliation subject to condition namely you should be in sober every day. Your drunkenness has caused their life in misery. Did you get any sort of relief from drinking alcohols? I do not think, you are addicted to alcohols and it deteriorated your health conditions and others safety of their lives. They do not have peace of mind because of your incorrigible habit. As I mentioned in Paragraph 3 you could have sentenced to 5 years imprisonment and that is the intention of Parliament to punish this kind of offenders. If I sentence you will lose family atmosphere. Since you have reconciled considering all factors, I select to adopt an alternate sentence. Thus I think it is inappropriate to consider custodial sentence in this matter. Therefore I am not setting a starting point for this offence. This court hopes this order enables you to contribute a peaceful homely atmosphere within your family life. This is the final chance that you are given and you are severely warned not to re-offend.

11. Therefore, I proceed to adjourn the proceedings of this case for 03 years in accordance with the guidelines set out in sec. 44(2) and (3) of the Sentencing and Penalty Decree 2009. You are bound over for sum of $ 2000 for next 03 years to maintain good behaviour and peace. I impose following conditions on you.
01. You should not harass mentally or physically to your wife, children or any other family member.
02. You should not come home after liquor. You should be in sober habits.
03. You should not commit any offence whatsoever
04. You are ordered to report to Nasinu Police station last Sunday of every month between 6am to 6pm during this three years period.
You are further warned that if you commit any offence during this three years period you are liable to pay the above-mentioned bond to the court. You are hereby released, upon your undertaking to maintain good behaviour and peace for three years subjected to following further conditions.

12. At the expiry of three years, you are ordered to furnish an "all clearance report" to the court from the nearest police station to prove that you were in good behaviour and peace for last three years. At the time of expiry of three years, that report should be produced to the Senior Court Officer at Nasinu Magistrate Court to file of record and proceedings to be terminated and you will be discharged under the section 44(6) of the Sentencing and Penalty decree 2009 accordingly.

13. Senior Court officer is directed to give a copy of this order to accused wife and if the accused breach one or more of these conditions, she could report it to the court through Senior Court Officer or officer in charge of the nearest police station and accused will be punished accordingly.

14. 28 days to appeal.

On 14th March 2011, at Nasinu, Fiji Islands

Sumudu Premachandra
Resident Magistrate